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Toudle v. United States

Court of Appeals of The District of Columbia

July 5, 2018

Lejeezan Toudle, Appellant,
v.
United States, Appellee.

          Argued April 12, 2017

          Appeal from the Superior Court of the District of Columbia (CF2-7876-15) (Hon. Todd E. Edelman, Trial Judge)

          Benjamin Miller, Public Defender Service, with whom Samia Fam and Mikel-Meredith Weidman, Public Defender Service, were on the brief, for appellant.

          Sharon A. Sprague, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, and Tamika Griffin Moses, Assistant United States Attorneys, were on the brief, for appellee.

          Before Blackburne-Rigsby, Chief Judge, Thompson, Associate Judge, and Ruiz, Senior Judge.

          Thompson, Associate Judge

         A jury convicted appellant Lejeezan Toudle of unlawful possession of a firearm (felon in possession); carrying a pistol without a license outside a home or business ("CPWL"); and possession of an unregistered firearm. In this direct appeal, appellant challenges the trial court's denial of his motion to suppress statements he made during his post-arrest custodial interrogation. He primarily argues that statements his interrogators made during his interview subverted the advice they had earlier given him about his Miranda rights, [1] invalidated the waiver he had made of those rights, and resulted in a confession that was inadmissible. He also contends that the investigators' tactics rendered his confession involuntary. Although we agree that improper statements by an interrogator after a suspect has heard, understood, and waived his Miranda rights may, in the totality of circumstances, invalidate the waiver prospectively, we are persuaded that this is not what occurred in this case.[2] We are also satisfied that appellant's confession was voluntary. Accordingly, we affirm.

         I. Background

         The relevant facts are as follows. In the afternoon of June 9, 2014, Metropolitan Police Department ("MPD") officers responded to a "look[-]out for an individual who was possibly carrying a firearm" at 16th Street and Kalorama Road, N.W. Upon arriving at a location in the 2400 block of 16th Street, N.W., one of the officers observed appellant, who fit the look-out description, walking northbound on 16th Street. As the officers, who were in uniform and driving a scout car, parked and began to exit the car, appellant noticed them, and he fled before they had a chance to speak with him. The officers followed on foot.

         During the chase, appellant turned into a parking lot and stopped at the rear of a vehicle, where an officer who had caught up with him saw appellant "ducking down almost to conceal himself . . . ." The officer testified to seeing appellant "move his arm . . . away from [his] body and towards the [vehicle]" and then hearing "the sound of a metal object hitting the ground."[3] Appellant fled again, this time tripping and falling shortly upon taking flight. The officers apprehended and detained appellant and, upon returning to where the vehicle was parked, found a firearm beneath the vehicle. The officers then arrested appellant for possession of the firearm.

         At the police station, Investigators Elias Danho[4] and James Gamble interviewed appellant. The video recording of that interview, which we have reviewed, shows appellant arriving into a small room, where the investigators undo his handcuffs and chain his feet to the floor. The substantive interview began with Investigator Gamble telling appellant:

[D]on't say anything yet, but you're looking at a felon in possession of a firearm charge . . . . So today, because you're a felon, it's a felon in possession of a firearm. It's a little more serious . . . . So this is your chance to kind of roll me through what's going, what happened out there . . . . So let me read you your rights, you think about . . . what we gonna talk about and then you let me know what we're gonna do[, ] okay?

Appellant nodded.

         Thereafter, Investigator Gamble read appellant his Miranda rights from a form as appellant, looking at the form, followed along. Once he finished reading, Gamble asked appellant whether he had any questions (a question appellant answered by "shak[ing his] head no") and whether he understood his rights. Appellant responded that he did. When Investigator Gamble then asked appellant whether he "wish[ed] to answer any questions," and appellant responded, "No," Gamble stated, "All right. That's it then."

         As the investigators begin gathering their materials to leave the room, appellant inquired, "How I got charged with a gun?" Gamble responded, "Well[, ] I'm not gonna answer your questions if you're not gonna answer mine[]." Appellant replied, "I mean I'll answer questions. I ain't got no problems answering no questions." Gamble then retrieved a new Miranda form, reread appellant his rights, and asked the required questions again. This time, appellant agreed to answer questions outside the presence of an attorney.

         The investigators then questioned appellant over a period of about an hour and fifteen minutes (interrupting the interview at one point after appellant said that he needed to use the restroom). The investigators began by asking appellant to explain "why [he] started running" when officers arrived. Appellant first said that he did not know that the men who approached him were officers, even though they were in uniform. When Investigator Gamble again asked why appellant had run, appellant eventually explained that he and the man he was with when officers arrived were in the area because that man, whom he did not really know, had asked appellant to give him a ride to an apartment building there. Appellant said that he had no idea what the other man was planning to do at the building. Appellant continued, "So then - so we couldn't get in the building . . . . So when we start walking back off[, ] he was just like, man run. I don't know what he had did. When the police had pulled up[, ] and he was like run, I just ran. That was it."

         When Investigator Gamble told appellant that the other officers had reported that appellant had a gun on him, appellant denied that he had a gun (saying instead, "I had a knife on me, man."). In response, the investigators told appellant that his denials were "not gonna cut it." Appellant responded, "I already know it ain't gonna cut it right here." Investigator Gamble urged appellant to provide "a reason" why he had the gun, such as "someone's out for me," suggesting that "maybe they can work with that." Gamble told appellant that if he were to go "in front of th[e] judge and say, I didn't have a gun on me, . . . they're gonna look at [appellant's prior convictions for] armed robbery, previous arrest with the gun, [and the] officer saying [appellant] had the gun," and appellant would be "done. Right?" Appellant agreed, saying "Um hmm." Appellant also agreed with Gamble's observation that the gun made it look like he was "there about to rob somebody again" and acknowledged that "[w]ith my background[, ] [the judge or jury] gonna believe [what the officers have to say]."

         Throughout the interview, Gamble suggested that appellant's possession of the gun had already been established, stating at one point, "[W]e don't really need to talk. Because from what they're telling me[, ] they got you." Gamble further told appellant, "I'm not even trying to get you to say, yeah[, ] I had a gun, because we know you had a gun. I'm trying to figure out why you had a gun." Gamble told appellant that the investigators "need[ed] to hear a reason," such as that appellant had "an ex-girlfriend . . . who [had] threatened" him, or that appellant's friend "handed [him] a gun" and "said hold this for a second," or that appellant "needed a gun [be]cause he thought [other people] were gonna kill him . . . . [or that] [t]hey might even go kill his grandma . . . ."

         The investigators also told appellant that this was his chance to "lessen the damage" by informing them of the reason for his possession of the gun. Investigator Gamble told appellant that if the person to whom he had given a ride "did something wrong up in that apartment[, ] you're facing that too."

         When appellant continued to deny possession of the gun (he asserts that he did so "twenty times"), Gamble finally stated, "All right[, ] man. I mean, we don't want to keep going round and round with you, but you got - this is it. I don't think we have much more. So you sure? You don't want to go over this story one more time from the beginning?" This time - just after telling Investigator Danho (who had stood after telling appellant that the investigators would "give [him] a few minutes") to "sit down" again - appellant confessed. Appellant told the investigators that he and the man to whom he had given a ride went to the building to "sell the gun to somebody, "[5] and that because "the [other man's] shirt . . . was too small" or "too short" to conceal the gun, appellant "held the gun" ("just grabbed [the gun] and tucked it" in his jeans) for the other man. Appellant said that the gun had a "wood handle" and stated that the gun must have fallen out of his pants when he tripped and fell during his flight from the officers. Shortly after appellant made that statement (at approximately 6:43 p.m.), the interview ended.

         II. Appellants Contentions and the Standard of Review

         Appellant contends that the trial court erred in ruling that his confession was admissible and in denying his motion to suppress. He asserts first that "when police administer proper Miranda warnings and secure a valid waiver . . . but then contradict or undermine the warning, any subsequent statement is inadmissible," because "a suspect who is misinformed about the consequences of foregoing his right[s] . . . cannot have knowingly, intelligently, and voluntarily waived that right . . . ." He argues that this is what happened here: that statements by Investigators Gamble and Danho contradicted and undermined the Miranda warning, rendering appellant's prior waiver ineffective with respect to the statements he made toward the close of the interview. Appellant also argues that the interrogators' tactics rendered his confession coerced and involuntary.

         The facts of what occurred during the interrogation, captured on video and transcript, are not in dispute. Appellant's claims raise entirely legal issues, as to which our review is de novo. See Dorsey v. United States, 60 A.3d 1171, 1190 (D.C. 2013) (en banc) ("[O]ur review of the trial court's legal conclusions is de novo."); see also id. at 1190 ("[W]hether [the defendant] validly waived his Fifth Amendment rights and voluntarily confessed" "is a legal question subject to our de novo examination.").

         III. Analysis

         "The rights expressed in the Miranda warning pertain throughout the interrogation." Lee v. State, 12 A.3d 1238, 1246 (Md. 2011); see also Berghuis v. Thompkins, 560 U.S. 370, 388 (2010) (explaining that the interrogation process "provides the suspect with additional information that can put his or her decision to waive, or not to invoke, into perspective"). Thus, where a suspect says that he will no longer talk and that he wants a lawyer, Miranda requires the authorities to stop the interrogation cold, even after initially obtaining a valid waiver. See 560 U.S. at 388 ("If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease."). "[T]he individual's right to choose between silence and speech [must] remain[] unfettered throughout the interrogation process." Miranda, 384 U.S. at 469. This court and others have recognized that this means that "the interrogator may not say or do something during the ensuing interrogation that subverts th[e] [Miranda] warnings and [prospectively] vitiates the suspect's earlier waiver by rendering it unknowing, involuntary, or both." Lee, 12 A.3d at 1241, 1250-51 (holding that an officer's statement that the interrogation is "between you and me" subverted the Miranda warning that any statement the suspect makes "can and will be used against" him, "rendering in violation of Miranda all statements the suspect thereafter made during that interrogation").[6] This court found a vitiation of a prior waiver in Di Giovanni v. United States, 810 A.2d 887 (D.C. 2002). The opinion in that case recounts that when suspect Di Giovanni asked the police sergeant "whether he needed a lawyer at that point in time[, ]" the sergeant "responded that he would need one later, but that at that time he did not think Di Giovanni needed one" and that "it would be best if [Di Giovanni] told [his] side of the story." Id. at 890. We concluded that "in the totality of the circumstances, [the sergeant's] embellishments and directives that Di Giovanni didn't need a lawyer vitiated the validity of his waiver." Id. at 894.

         Here, similarly, we agree with appellant's argument that when an interrogator or interrogators make statements during a post-waiver interrogation that are contrary to what the suspect was told when he was read his Miranda rights and agreed to talk to the police without counsel, those statements may, in the totality of the circumstances, effectively nullify the waiver and render inadmissible any statements the suspect makes from that point on. The issue we confront is whether, in the totality of circumstances, that result ensued from appellant's custodial interrogation by Investigators Gamble and Danho. The totality of the circumstances includes, inter alia, a suspect's "prior experience with the legal system, evidence of coercion or trickery, cognitive ability . . . [, and the] delay between arrest and statement." Robinson v. United States, 928 A.2d 717, 725 (D.C. 2007).

         Appellant points to several statements made by the investigators that he contends undermined the Miranda warnings and vitiated his waiver. Below, we consider the statements in the context of the totality of circumstances to determine whether any of the statements, by themselves or in combination, had that effect and rendered appellant's waiver ineffective.

         A. Whether appellant's Miranda waiver was vitiated

         1. Appellant's background and the interrogation conditions

         The record indicates that at the time of his interrogation, appellant was thirty-one-years-old, had a criminal history that included convictions for robbery and CPWL, and, as he told the investigators during the interrogation, had "been locked up before" and was "familiar with the system." Prior to the interrogation, appellant had not "been drinking or smok[ing] anything." After entering the interview room, appellant placed his arms inside the torso section of his short-sleeved T-shirt (as if for warmth) and held them there for most of the interview, but seemed relaxed[7] and exhibited no signs of physical or mental distress during the interview.[8] Officers had encountered and arrested appellant at approximately 2:42 p.m., and Investigators Danho and Gamble began interviewing appellant at approximately 5:28 p.m. the same day, ending the interview approximately one hour and fifteen minutes later, at 6:43 p.m. Several times during the interview - including just before he confessed - appellant took long pauses before answering the interrogators' questions, apparently taking his time to think through the implications of his decision about what to say and whether to answer the investigators' questions (as if performing his "own balancing of competing considerations," State v. Owens, 643 N.W.2d 735, 751-52 (S.D. 2002)). Throughout the interview, the investigators never raised their voices, and they accommodated appellant's request to use the bathroom. Appellant was informed that he was "under arrest" and was read his Miranda rights (twice), and he told the investigators, "I understand my rights, man."

         We can discern nothing in the foregoing context and circumstances that gives us concern that appellant did not understand his rights at the time he confessed. We now go on to consider the investigators' statements and appellant's arguments based on them.

         2. Statements that appellant contends disparaged his right to have counsel present during the interrogation

         Appellant argues that the interrogators subverted the Miranda warning by disparaging his right to counsel. He focuses on ...


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